Zoning Board Minutes

Zoning Board of Adjustment

July 13, 2020

Approved August 10, 2020

Members Present: Peter Fichter, Chair; David Blohm, Vice-Chair; Gary Budd, Member; Reed Gelzer, Member; Hank Thomas, Alternate. 

Public Present: Jeremy Bonin, Will Davis, Rudi Franklin, Kara Obey, Greg & Lisa Uhrin

Mr. Fichter called the meeting to order at 7:02 p.m.

ADMINISTRATIVE BUSINESS

Election of officers

Mr. Blohm made a motion to nominate Mr. Fichter as ZBA chair. Mr. Gelzer seconded the motion. All in Favor.

Mr. Fichter made a motion to nominate Mr. Blohm as ZBA Vice-chair. Mr. Budd seconded the motion. All in favor.

Minutes

The Board reviewed the minutes of June 8, 2020. Mr. Buddmade a motion to accept the minutes as presented. Mr. Blohm seconded the motion. Mr. Gelzer abstained. All in favor.

The Board reviewed the minutes of June 15, 2020. Mr. Blohm made a motion to accept the minutes as presented. Mr. Budd seconded the motion. Mr. Gelzer and Mr. Budd abstained. All in favor.

Mr. Fichter appointed Mr. Thomas as a voting member for this meeting.

The Recording Secretary read into the record the following Public Notice:

Notice is hereby given that the Newbury Zoning Board of Adjustment will conduct a public hearing on the following proposal on Monday, July 13, 2020 at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:05 p.m., Bonin Architects & Associates (agent), Michael Sheft(owner), for property located at 20 Highland Ave., Newbury, NH, will seek a Variance from the requirements of Paragraph 15.2.1 of the Newbury Zoning Ordinance to permit the following: A 24’ x 12’ expansion of the non-conforming structure within existing disturbed areas containing impermeable decks. Newbury Tax Map 018-310-054. Copies of the application are available for review during regular business hours at the Newbury Town Office building. Business hours are as follows: Monday, Tuesday, Thursday, and Friday from 8 am-noon.

Jeremy Bonin and Will Davis presented to the Board.

Mr. Bonin said the Sheft family would like to expand their home. Mr. Bonin continued that they looked at several options and concluded that adding on to the existing building would have the least impact on the site. Mr. Bonin said the addition would be on a current deck footprint and because it is already on a slope a foundation wall will be easy to put in. Mr. Bonin continued this will be a first-flooraddition and the building will not be any taller. Mr. Bonin stated that in addition to this project, they will be moving a free-standing deck that is within the 75’ buffer back further from the lake.

Mr. Bonin said this will expand the living space for the growing family and make the rec room in the basement usable, the current living space is 16x14 square feet. Mr. Bonin continued that there was only one set of stairs in the house, which was a not code compliant spiral stair, the addition would allow for a normal stair. Mr. Bonin stated that this is a modest addition to a modest size house on Lake Sunapee.

Mr. Gelzer asked if the square footage given earlier included the northerly wing. Mr. Bonin said the 12’ x 24’addition was 288 square feet for a total of 576 total square feet. Mr. Gelzer said that Mr. Bonin made the statement about the current living space is modest at xnumber of square feet. Mr. Bonin said it was 1080 square feet. Mr. Gelzer asked if that included the existing wing. Mr. Bonin said yes.

Mr. Bonin said the addition is mimicking what is on the other side of the house. Mr. Bonin continued that in addition a new compliant septic system would be installed, the one that is there is unknown and being pumped several times per summer, so it is not meeting the modest needs of the house. Mr. Bonin said they were not able to locate a septic leach field on the site. 

Mr. Bonin said the proposed retaining walls are to maintain grade. Mr. Bonin continued that there is about a 6-footretaining wall there currently and the owners would like to break that up into two smaller walls so there is not a fall hazard for the kids. 

Mr. Blohm asked if the roofs were flat on both sides. Mr. Bonin said they were pitched. Mr. Blohm asked if they were pitched back. Mr. Bonin said it was a gable pitch and they were guttering half where it pitches back, as well as,part of the existing roof, picking those up as part of stormwater management. Mr. Blohm asked if all the eaves would be guttered. Mr. Bonin said those would be and he and Mr. Davis were just talking about the front edge because it is landing on a deck which isn’t very good. Mr. Bonin continued that if the Board wanted that we could have that as a condition, but they were going to do that anyway, so the rainwater wasn’t dumping on the deck. Mr. Blohm asked about the condition of the drip edge around the house. Mr. Davis said there was no drip edge. Mr. Davis continued that the proposed is an infiltrating drip edge 18 inches deep and 2 feet wide with fabric and substantial stone. 

Mr. Davis said that the deck side will end up with a gutter and take that leader to a small drywell underneath the deck. Mr. Davis continued that half of the addition and a portion of the existing roof will have the infiltrating drip edge. Mr. Fichter asked if there also would be a gutter. Mr. Davis said not on that side. Mr. Fichter asked if the detail of the drywell was on any of the drawings. Mr. Davis said no, the stormwater plan works without it, but with the change to the gutter we will end up putting in a small drywell, so basically a pipe that would go into some underground stone with fabric to take that water. Mr. Davis said the other improvement is the leach field, being this close to the lake it is nice to have an up to date septic system. Mr. Davis said for erosion control there will be a double row of sediment fence or silt socks. Mr. Davis said that if the variance goes through, they will be submitting a State stormwater management application as well.

Mr. Blohm asked why they were doing partial gutters instead of doing the whole thing. Mr. Bonin said they were working with a pitch gable and they have a hard time with gutters in the winter, and homeowners don’t always maintain, so they try to let gravity do what it does. Mr. Bonin continued that in instances where it presents a hazard, such as where water is sheeting off the roof onto a deck, where there are doors and other openings getting splash back and you can’t control it, that makes sense to gutter. Mr. Bonin said that from a maintenance standpoint, they have found out, if there is a deck there and the gutter is 8 feet over your head, it is much more likely to be maintained than when they are 3 stories on the lake side on a slope.

Mr. Gelzer asked if the area outlined on the plan as a deck is there now. Mr. Bonin said yes. Mr. Gelzer said then there is another section of deck immediately below that and all the walkways are there now. Mr. Bonin said correct. Mr. Gelzer said that it looks like the addition could actually beentirely behind the 75-foot setback and it would not intrude with the leach field. Mr. Davis said the leach field has to be 10 feet from the building and 10 feet from the property line and 75 feet from the water so this basically kind of maxed out the space that we had to work with for the leach field. Mr. Bonin said the drawing shows the odd shape of the leach field to keep it away from everything that it is supposed to be away from. Mr. Bonin continued that in theory they could have built into the hill, except we would be building higher than the houses current elevation because it is a pretty steep grade heading backwards up the driveway. Mr. Bonin said from the impact to the site we would be disturbing an area that isn’t disturbed as opposed to disturbing the area that is already disturbed. 

Mr. Gelzer asked that by putting the leach field where it is that means it is all gravity feed. Mr. Gelzer asked if there were any toilet facilities or drains on the lower level. Mr. Davis said the topography requires a pump system. Mr. Davis continued that the leach field had to come up for the water table, it is only pumping 3 or 4 feet. Mr. Gelzer said the leach field actually could be higher up because you are pumping anyway. Mr. Davis said there are limits to how steep, you can only do a leach field with a 15% maximum slope on the field itself and then you have to be able to tie it in with the side slope and it is not feasible to construct on a slope like that. Mr. Gelzer asked if there are leach fields that can be designed to be driven over, so it could be under the parking lot. Mr. Davis said that is correct. Mr. Gelzerasked why they didn’t do that. Mr. Bonin said it is not very serviceable once it is under parking. Mr. Davis said it is not ideal to put it under parking, it is possible, and they have systems that can do that, but they are more expensive and there are other long-term maintenance issues. Mr. Davis said if they can avoid it, they would rather not place the leach field under the parking. 

Mr. Gelzer said it sounds like the addition could be made more conforming by moving it further back from the lake. Mr. Bonin said other than the fact that were excavating into a steep hill more, anything is possible. Mr. Bonin said that for the most part the grade is already excavated where the decks are so there is minimal excavation to get down below frost. Mr. Bonin continued that where we put the addition is the least excavation, the easiest to get to with the excavator and not impact the leach field. Mr. Bonin said that as you push the addition back it pushes the leach field over.Discussion followed.

Mr. Gelzer said he was looking at the new placement of the deck and asked why the deck can’t be moved back. Mr. Bonin said they would be excavating the hillside to put a deck into it, that is where the current 6-foot wall is, and the deck is actually being pulled further back from the State’s 50-foot buffer. Mr. Gelzer said the elevation of the new deck is 1123 something. Mr. Gelzer asked what the elevation was of the first step of that wall. Mr. Bonin said the elevation of the new wall is 1127.9 and the deck is 1123.9. Mr. Gelzer said that if you excavated 4 feet you could move the deck back the width of that first step. Mr. Bonin said we would have to move the other step back and then it is starting to crowd the leach field again. Mr. Bonin continued they couldn’t put a retaining wall at the toe of the leach field. Mr. Davis said there is a lot of constraints. Mr. Gelzer asked why they would have to move the second level back; couldn’t they just make it stronger. Mr. Bonin said they could make it a taller wall, but the client is concerned about his young kids flying off a 6- or 8-footwall, which is what’s there currently. Mr. Gelzer said of course they will be putting railings around the deck, so a railing on the wall wouldn’t be a particular problem. Mr. Bonin said he supposed so.

Mr. Gelzer asked how long the current owner has owned this property, did he buy it in the last year or two. Mr. Bonin said he did not buy it in the last year or two.

Mr. Gelzer said that it was quite a driveway and the far end of the driveway has gullying from the runoff from the driveway. Mr. Gelzer asked why that was not addressed in the plans and it also seems that it would have some impact on the drain field. Mr. Bonin said they will be re-grading that area in its entirety. Mr. Gelzer asked if there were any mitigation features to deal with the extraordinary amount of water that comes down that driveway, especially since the culvert mid-way up the driveway as shown in the drawing is completely filled with soil and actually has grass growing out of it. Mr. Davis said they were re-grading and re-stabilizing everything in that area, it is possible we could look at doing something to mitigate that issue. Discussion followed.

There being no further questions from the Board, Mr. Bonin addressed Article 16.8 of the zoning ordinance:

16.8.1 The variance will not be contrary to the public interest because: This project proposes to construct a modest addition to an existing non-conforming building. The proposed expansion will not create a greater non-conformity in regard to distance from the reference line because the expansion is in a lateral direction. Proposed upgrades to the existing septic system, landscaping, and storm water management will provide additional environmental benefits. The proposed additional non-conforming footprint of living space is mostly with-in the footprint of existing impermeable decks and stairs.

16.8.2 Special conditions exist such that literal enforcement of the ordinance

results in unnecessary hardship,

a) There are special conditions in the property that distinguish it from other properties in the area because: The steep nature of this site limits construction ease and feasibility. The proposed expansion is in an already disturbed area, largely with-in existing coverage footprint and mostly located in the flattest area of this site, though the addition would include a lower level walk out as the existing residence in constructed as such. This site has approximately 72’ of change in elevation from east to west.

b) The property is different in a meaningful way from other properties in the area because: Other than the areas where the existing house, driveway and proposed leach field are located, Article 9 “Steep Slopes” considers most of this site unbuildable. It has a uniquely small building envelope proportionally to the lot area and other properties in this overlay district.

c) The property is burdened more severely by the zoning restrictions because: As an existing non-conforming lot, by frontage and area, district setbacks proportionally have a greater impact on the area of the building envelope than they would on a lot on conforming size. Steep slopes restrict the building envelope even further.

d) Because of the special conditions of the property, the proposed use of the property is reasonable because:The proposed use of the property will not change, it will continue to be a single-family residential use as zoned.

16.8.3 The variance is consistent with the spirit of the ordinance since: The spirit of the ordinance, particular to this Overlay District, is to protect the water quality and character of Lake Sunapee. Landscape, septic, and storm water improvements will provide environmental benefits by implementing best management practices for water quality. The character of the lot will remain largely unchanged; no natural groundcover or tree removal is required with-in the waterfront buffer.

16.8.4 Substantial justice is done because: Substantial justice is done because the owners are allowed to improve their property in a meaningful and conscientious way, benefitting their daily lives without having an adverse effect on the health, safety and welfare of their neighbors, the town, or the environment.

16.8.5 The value of surrounding properties will not be diminished because: Improvements will increase the value of the home and have a positive effect on the values of adjacent homes. The modest expansion has no significant effect on views as neighbors to the east of the property sit high upon the hill and the addition will not expand upward. 

Mr. Blohm noted that there was about a 150-year-old tree that was cut down. Mr. Blohm asked what that was all about. Mr. Fichter asked if Mr. Blohm had counted the rings. Mr. Bonin said he thinks the tree was taken down after being damaged in a windstorm, but he does not have that information with him tonight. Mr. Gelzer said he contacted the Conservation Commission chair to follow up on if a permit was drawn to take the tree down.

There being no further questions from the Board, Mr. Fichter opened the public portion of the meeting.

There being no comment from the public, Mr. Fichterclosed the public portion of the meeting.

Mr. Gelzer said he was concerned that the stormwater management and erosion control plans do not conform to 21.7-Designing Standards for Current Stormwater Management and Erosion Control; 21.7.4 Sediment and runoff water should be trapped and contained…etc. Mr. Gelzer continued that it is pretty dramatic that the previous owners of this site have not maintained existing erosion controls. Mr. Gelzer said he thinks this plan needs to be modified to account for the extraordinary amount of runoff coming down the driveway toward the house and the drainfield. Mr. Gelzer continued that he doesn’t think the re-grading of the area is sufficient, there needs to be mitigation facilities there to both slow the water down and catch materials that wash down the hill. Mr. Gelzer said he would also like the Board to stipulate that since they are creating the drip edge in the space of construction that they continue the drip edge all along the back side of the house.

Mr. Gelzer said he would like the modified plans to come back to the Board rather than have the Code Enforcement Officer be burdened. Discussion followed.

Mr. Fichter asked if the homeowner would be amenable to mitigation for the runoff from the driveway. Mr. Davis said catch basins and trench drains always tend to fill up so if you can swale and direct things into raingardens and other things that is less maintenance required that is better. Mr. Davis continued he thinks the homeowner is definitely okay with doing work to better the site. Discussion followed. 

Mr. Bonin said he was concerned because the homeowner’s intent was to do the work this fall when everything dries out and if they had to come back to the Board that would be September, so if there is some additional conditions that would allow them not to have to come back to the Board. Mr. Bonin continued that this project still needed to be permitted with the State and it still needs to come back before the Code Enforcement Officer, who could then review that the conditions of the variance have been met. Mr. Fichter said the Board could do that by way of a condition if the variance is granted. Discussion followed.

The Board went into deliberations.

Mr. Blohm made a motion to vote on the request fromBonin Architects & Associates (agent), Michael Sheft(owner), for property located at 20 Highland Ave., Newbury, NH, for a Variance from the requirements of Paragraph 15.2.1 of the Newbury Zoning Ordinance to permit the following: A 24’ x 12’ expansion of the non-conforming structure within existing disturbed areas containing impermeable decks, Newbury Tax Map 018-310-054, with the following conditions:

• A modified Stormwater Management Plan that conforms to Section 21.7.4 addressing the sediment coming down the driveway specifically.

• A modified Stormwater Management Plan to include detail of the proposed gutter and piping into a drywell under the deck.

• Drip edge as proposed to continue around the rest of the house, the side of the house towards Highland Ave.

Mr. Budd seconded the motion.

Roll Call Vote:

Hank Thomas-voted to Grant the Variance from Paragraph 15.2.1 with the stated conditions.

Reed Gelzer- voted to Grant the Variance from Paragraph 15.2.1 with the stated conditions.

Gary Budd- voted to Grant the Variance from Paragraph 15.2.1 with the stated conditions.

Peter Fichter- voted to Grant the Variance from Paragraph 15.2.1 with the stated conditions.

Dave Blohm- voted to Grant the Variance from Paragraph 15.2.1 with the stated conditions.

Mr. Fichter advised that the applicant or any party directly affected by this decision may appeal to the ZBA within thirty (30) days of the decision pursuant to RSA 677:2. Said motion must set forth, in detail, all grounds on which the appeal is based.

The Recording Secretary read into the record the following Public Notice: Notice is hereby given that the Newbury Zoning Board of Adjustment will conduct a public hearing on the following proposal on Monday, July 13, 2020 at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:20 p.m., Gregory J. & Lisa Uhrin (owners), for property located at 258 Route 103A, Newbury, NH, will seek a Variance from the requirements of Paragraph 5.9.1 of the Newbury Zoning Ordinance to permit the following: Construction of a 20’ X 28’ garage within the 15’ side setback, and within 30’ of the right of way setback.  Newbury Tax Map 019-184-523. Copies of the application are available for review during regular business hours at the Newbury Town Office building. Business hours are as follows: Monday, Tuesday, Thursday, and Friday from 8 am-noon.

Mr. Thomas asked what the setback from a State road is and if the Board can give a variance. Mr. Fichter read the zoning ordinance definition of right of way, this means and includes all public bodies of water and all towns, state, and federal highways, road rights of way, public or private and land on either side of same covered by statute. Mr. Fichtersaid it doesn’t answer the question if the Board can grant the variance. Mr. Thomas said the Board could continue the public hearing or if the variance is granted have a condition that stipulates that it meets any State setback. Mr. Blohmsaid maybe say it a little differently-if the Board has the right to grant a variance to a State setback.

Mr. Uhrin presented to the Board.

Mr. Uhrin said they were proposing a 20 x28 garage in an area that doesn’t conform to setbacks. Mr. Uhrin continued that they had looked at putting the garage on the other side of the house, but it drops off too quickly. Mr. Uhrin said that they are looking toward their future as they age and like the idea of having a garage. Mr. Uhrin said they have moved to Newbury relatively recently and have gone through one winter and Mrs. Uhrin would like a garage before next winter.

Mr. Uhrin said the garage is designed as a separate building and the reason for requesting the variance from the setbacks is to be able to have an exit door at grade and with bringing it forward it will be less fill.

Mr. Fichter said the Board could clearly deal with the side setback variance and make an assumption on what the authority the Board can have as far as the State is concerned.

Mr. Fichter said that subsequently the applicants provided some method, suggested by their contractor, for dealing with the runoff water coming directly off the roof so it is not just splashing off of the ground and be helped to dissipate a little bit. Mr. Fichter continued that there is a lot of land between the Uhrins and downhill so certainly during most times of the year that’s going to serve as an absorbing area, but the Board worries a little bit about what happens in the wintertime.

Mr. Blohm asked who the northside abutter was. Mr. Uhrinsaid it was John Sullivan, who has written a letter of support. (attached to minutes)

Mr. Gelzer said the side setback you are looking for is 10 feet and part of the rational for that is there is an egress on the lower level. Mr. Uhrin said yes, in the house there is a bedroom on the second level that has a window that would be blocked if the garage was built right into the house and they would lose the use of that bedroom. Mr. Fichter said the side setback is indicated as 11 feet, not 10 feet.

Mr. Gelzer said that the variance is just for the modification of the setbacks but asked if that exempts the applicant from stormwater management, erosion control and landscape plans. Ms. Favreau said this project does not apply to Article 21, so does not need a stormwater management plan.